|
Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
|
CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Marchione,
384
Supreme Judicial Court of Massachusetts, Middlesex.
Argued
Decided
Robert L. Rossi, Asst. Dist. Atty., for
Commonwealth.
Dorothy DeMita Driscoll,
Before HENNESSEY, C. J., and BRAUCHER,
LIACOS, ABRAMS and NOLAN, JJ.
HENNESSEY, Chief Justice.
The
Commonwealth appeals from an order of a Superior Court judge suppressing
evidence gathered in a warrantless search of premises
leased by the defendants. ([FN2]) We conclude that the search was permissible [384
We
summarize the evidence presented at the suppression hearing. In 1975, the defendants were tenants of one
unit in a two‑unit commercial building on
Pursuant
to an oral agreement, the owner had retained a key to the defendants' half of
the building to be used in an emergency.
The owner used the key to gain access to the defendants' unit at the
street level. After entering and finding
the cellar door padlocked, the owner and his oil man looked through an existing
opening in the floor and saw water and oil on the cellar floor. ([FN3])
They broke the padlock and opened the door to the cellar, where they
found four plastic jug‑like containers on a landing immediately inside
the cellar door. The owner smelled
gasoline in the one container on the landing that he investigated, and saw four
more containers spread apart from one another on the cellar [384 Mass. 10]
floor. The cover on each was ajar, and
the owner again smelled gasoline when he inspected one of the containers on the
cellar floor. ([FN4]) In close proximity to one of the containers
on the floor was an electric toaster in which there were numerous open folders
of unused matches. The operating
mechanism of the toaster was switched to "on," and the toaster was
covered by a pile of newspapers. The
toaster cord ran upward through a hole in the street floor, and the plug on the
end of the cord was partially inserted into a wall receptacle at the street
floor level.
Upon
making these observations the owner telephoned the fire department, which
promptly sent firefighters to the premises.
Shortly after viewing the scene in the cellar, one of the firefighters
telephoned the police. Several police
officers came, and, under the joint supervision of the fire and police
departments, the fire department removed the containers to the fire
station. ([FN5]) No warrant was obtained.
(1)(2) It
is elementary that when a search is conducted without a warrant, the burden is
on the Commonwealth to show that the search falls within the class of
permissible exceptions justifying the warrantless
search. Commonwealth v. Saia, 372 Mass. 53, 56, 360 N.E.2d 329 (1977). Commonwealth v. Antobenedetto,
366 Mass. 51, 57, 315 N.E.2d 530 (1974).
One of the exceptions to the warrant requirement of the Fourth Amendment
to the United States Constitution is where exigent circumstances make it
impracticable for authorities to obtain a warrant while the hazardous situation
continues to exist. See, e. g.,
Commonwealth v. Young, ‑‑‑ Mass. ‑‑‑, ‑‑‑,
([FNA]) 416 N.E.2d 944 (1981); Commonwealth v. Franklin,
376 Mass. 885, 898‑900, 385 N.E.2d 227 (1978); Commonwealth v. Forde, 367 Mass. 798, 800‑803, 329 N.E.2d 717
(1975). The legal issues presented in
this case, as in most cases where exigency is claimed to justify a warrantless search, reduce to two questions: (1) whether
the authorities had reasonable [384
Mass. 11] ground to believe that an
exigency existed, and (2) whether the actions of the firefighters were
reasonable under the circumstances. See
Commonwealth v. Young, supra. "(T)o
qualify as an emergency exception, there must reasonably
appear to exist an exigency in the course of which a discovery related to the
purpose of the entry is made. The
exigent circumstances legitimate the presence, and the relevance of the
discovery to the justification for the entry sanctions the seizure." Mascolo, The
Emergency Doctrine Exception to the Warrant Requirement under the Fourth
Amendment, 22 Buffalo L.Rev. 419, 427 (1973). See Michigan v. Tyler, 436 U.S. 499, 509, 98 S.Ct. 1942, 1949, 56 L.Ed.2d 486 (1978).
(3) The
judge below concluded that there were no exigent circumstances sufficient to
justify a warrantless search. This finding as to exigent circumstances is a
legal conclusion and is therefore open to review by an appellate court,
especially since it is of constitutional dimension. Commonwealth v. Accaputo,
‑‑‑ Mass. ‑‑‑, ‑‑‑ n.18,
([FNB]) 404 N.E.2d 1204 (1980). We hold that the warrantless
entry upon the defendants' premises by the firefighters was justified by
exigency, and that the subsequent seizure of the challenged evidence was
legitimated by the "plain view" doctrine.
(4) The
circumstances which occasioned the owner's call to the fire department the
combination of the cellar floor being covered with a volatile liquid and forty
gallons of an explosive liquid being stored in partially open containers in
proximity to the homemade incendiary device and the oil burner ([FN6]) quite
clearly presented an emergency situation requiring immediate action for the
protection of life and property. See
Model Code of Pre‑arraignment Procedure [384 Mass. 12] s 260.5
(Official Draft 1975) ("An officer who has reasonable cause to believe
that premises ... contain ... things imminently likely to burn, explode, or
otherwise cause death, serious bodily harm, or substantial destruction of
property ... may, without a search warrant, enter and search such premises ...
to the extent reasonably necessary for the prevention of such death, bodily
harm, or destruction"). See also
United States v. Callabrass, 607 F.2d 559 (2d Cir.
1979); United States v. Moskow, 588 F.2d 882 (3d Cir.
1978). Cf. Michigan v. Tyler, 436 U.S.
499, 509‑510, 98 S.Ct. 1942, 1949‑1950,
56 L.Ed.2d 486 (1978). The defendants
make much of the lack of specific evidence concerning the details of the
owner's telephone conversation with the fire department, implying that it is
doubtful whether the firefighters knew of the emergency situation until they
impermissibly crossed the threshold and discovered the exigency. This is too fine a reading of the
evidence. An inference may certainly be
drawn from the owner's immediate call to the fire department, and from the
prompt arrival of the firefighters, that he had told the fire department what
every reasonable person in his situation would have told them, namely, that he
had just discovered a large quantity of volatile and explosive liquids
surrounding an incendiary device on the floor of the adjacent premises. In such circumstances, the fire department is
obligated to investigate. G.L. c. 148, s 5. Once
lawfully within the premises, the firefighters were entitled to seize the
gasoline as evidence of crime within plain view. See Coolidge v. New Hampshire, 403 U.S. 443,
464‑473, 91 S.Ct. 2022, 2037‑2042, 29
L.Ed.2d 564 (1971).
The order
suppressing the containers, their contents, and the testimony concerning the
results of chemical analysis of the contents is vacated. An order is to be entered in the Superior
Court denying the motions to suppress evidence.
So
ordered.
(FN1.) Paul A. Cerce.
(FN2.)
The defendants, charged with conspiracy to burn insured property in violation
of G.L. c. 274, s 7, and G.L.
c. 266, s 10, each made a motion to suppress evidence. After hearing, the motions were allowed as to
containers seized without a warrant, the contents of those containers, and
analysis of the contents. The
Commonwealth applied to this court for interlocutory review of the judge's
order. G.L. c.
278, s 28E. A single justice of this
court remanded the case for further findings by the Superior Court judge and
stayed the request for interlocutory appeal.
After the judge made further findings, the application for interlocutory
appeal was allowed. The case was
forwarded to the Appeals Court and later transferred to this court on our own
motion.
(FN3.)
After inspecting the cellar, the owner and his oil man found that the oil was
leaking from a loose fitting in the oil line to the oil burner which was
situated in the defendants' cellar.
(FN4.)
Subsequent chemical analysis revealed that the liquid in the eight five‑gallon
containers was gasoline.
(FN5.)
Unlike Michigan v. Tyler, 436 U.S. 499, 502‑504, 98 S.Ct.
1942, 1946‑1947, 56 L.Ed.2d 486 (1978), the role of the police in the
case at bar was inconsequential.
(FNA.) Mass.Adv.Sh. (1981) 280, 288.
(FNB.) Mass.Adv.Sh. (1980)
1009, 1021 n.18.
(FN6.) No evidence was presented concerning
whether the oil burner was operating or operational, nor whether the
electricity in the unit was on. However,
this is not fatal. "(W)hether an exigency existed, and whether the response of the
police was reasonable and therefore lawful, are matters to be evaluated in
relation to the scene as it could appear to the officers at the time, not as it
may seem to a scholar after the event with the benefit of leisured retrospective
analysis." Commonwealth v. Young, ‑‑‑
Mass. ‑‑‑, ‑‑‑ (Mass.Adv.Sh. (1981) 280, 288), 416 N.E.2d 944 (1981).